Dove v. Atchison, T. & S. F. Ry. Co.

• Decision Date: 19 February 1940
• Docket Number: No. 19583.,19583.
• Citation: 140 S.W.2d 715
• Court: Missouri Court of Appeals
• Parties: DOVE et al. v. ATCHISON, T. & S. F. RY. CO. et al.

140 S.W.2d 715

DOVE et al. v. ATCHISON, T. & S. F. RY. CO. et al.

No. 19583.

Kansas City Court of Appeals. Missouri.

February 19, 1940.

Rehearing Denied May 20, 1940.

Appeal from Circuit Court, Jackson County; Thomas E. Walsh, Special Judge, sitting for Marion D. Waltner, Regularly Elected Judge.

"Not to be published in State Reports."

Action by Willian Dove and others, minors, by their guardian, James O. Kenton, against the Atchison, Topeka & Santa Fe Railway Company and others, for the death of the minor plaintiffs' mother who was allegedly killed when struck by defendants' train. From a judgment for plaintiffs, defendants appeal.

Reversed and remanded.

Cyrus Crane, George J. Mersereau, John N. Monteith, Dean Wood, and James F. Walsh, all of Kansas City, for appellants.

William R. Ross, C. W. Prince, and E. H. Gamble, all of Kansas City, for respondents.

SPERRY, Commissioner.

This is a suit for damages brought by plaintiff, guardian of the minor unmarried children of Velma Britt, deceased, against Atchison, Topeka & Santa Fe Railway Company, and J. E. Newell and B. W. Clark, defendants. We shall refer to the parties as plaintiff and defendants, and to Mrs. Britt as deceased. Judgment was for plaintiff and defendants have appealed.

Defendant Railway Company operates a railroad line through the town of Hardin. The rail line runs east and west at the point where the accident occurred, and from that point eastward the track is level and straight for a distance of more than one-fourth mile. The accident occurred at a point where the rail line intersects 2nd Street, which street runs north and south. There are three sets of tracks at this point, the set furthest south being a switch, or siding; the next is the main line, over which east bound trains passed; and the track furthest north is the main line over which west bound traffic passed. The rails of each set of tracks are five feet apart; the distance between the sets of tracks is nine feet; and the engine protrudes beyond the rails a distance of eighteen inches on each side.

This is defendant's main line from Chicago via Kansas City, to Los Angeles. Fifty trains per day pass over this line, some going in each direction. All but a few, of these trains, are "through", and travel along this piece of track at a rate of speed of from 40 to 60 miles per hour. One such train, going east, regularly passed through, at about 6:00 a.m., and the train which killed Mrs. Britt regularly passed through, going west, a few minutes later. There was an ordinance in effect, which ordinance was in evidence, declaring it to be unlawful for a train to proceed within the city limits of Hardin at a speed in excess of ten miles per hour; but all of the evidence was to the effect that through trains, such as the one just mentioned, habitually traveled at a speed of from 40 to 60 miles per hour. The train in question, at the time of the accident, was traveling at a speed of 60 miles per hour.

Deceased had lived on 2nd Street, about one block north of the crossing for a period of something over two months prior to her death. From her home the railroad tracks could be seen, but the view was obstructed by some oil tanks. The main business section of Hardin was located south of the crossing, and deceased usually crossed the tracks at 2nd Street on her way to and from the business section of the town. The evidence was to the effect that she walked to and from the business section of the town on an average of about once each day. Deceased enjoyed good eyesight and hearing.

The accident occurred at about 6 a.m., after sunup. Mrs. Britt was last seen, prior to her death, proceeding northward toward the crossing, and in the direction of her home, along the sidewalk on the west side of 2nd Street. The Stratton & Chase Lumber Company buildings face east on 2nd Street, lying adjacent to the right of way of defendant company, and extending westward along said right of way from 2nd Street. The workshop is adjacent to the right of way and the office is just south of it.

Mr. Shirley, employed by Stratton & Chase, testified that he saw deceased through the window of the office, as she walked along the sidewalk in front and observed her until she was in front of the workshop; that she was walking toward the railroad tracks; that he lost sight of her when she reached a point some forty feet south of the railroad tracks; that immediately after she passed out of view he saw a passenger train going eastward at about 60 miles per hour; that just a few seconds later he saw a west bound passenger train pass, going at a speed of 60 miles per hour; that the east bound train had cleared the crossing only a few seconds when the west bound train came onto the crossing; and that the rate of speed of both trains was about 60 miles per hour. He also testified that one who stood at the 2nd Street crossing, ordinarily, had an unobstructed view down the tracks, eastward, for a distance of more than one-fourth mile. No evidence was offered by defendant. Mr. Shirley, so far as is shown, was the last person to see Mrs. Britt alive.

A short while after the trains passed, the dead body of Mrs. Britt was found. It was lying in the space between the main line tracks, with her head against the north rail of the east bound track, and at a point about 120 feet west of the crossing. None of the members of the train crew saw her at any time and they learned of the tragedy only after reaching the Argentine Shops, where a lady's slipper was found lying on the front part of the engine.

Defendant Newell was the engineer in charge of the train which struck deceased. His deposition was taken by plaintiff and was, by the plaintiff, introduced in evidence. He did not see Mrs. Britt and his testimony was, generally, inconsequential.

Defendant Clark was the fireman on the train. His deposition was also taken, and was introduced in evidence by plaintiff. He stated that the engine he was firing passed the rear end of the east bound train herein mentioned at a point some 600 feet east of the fatal crossing; that he did not see deceased; and that when the trains met there was much smoke and dust, which obscured his vision.

Clark's statement regarding dust and smoke evidently referred to dust and smoke at the point where the engine of the one train met and passed the rear end of the other. There was no evidence regarding the actual conditions as to dust and smoke at the crossing, about 600 feet west.

There is no evidence as to exactly where deceased was located at the time the first train passed. No one saw her alive from the time when she was at a point some 40 feet south of the switch track, and 66 feet south of the overhang of the engine that struck her. The evidence does not disclose where she stood, or whether she stood, or continued to walk, or loiter, while the east bound train passed. The only reasonable inference that may be drawn from the evidence, regarding her location at the time when, and during which, the east bound train passed, is that she was somewhere south of it. However, it is pure speculation for us to say whether she was on the north or south side of the track, within the overhang of the engine, or whether she was somewhere between the rails, when she was struck by the west bound train. As to this matter there was no eyewitness; and the circumstantial facts are so meagre that we cannot infer the answer to the question.

Defendants failed to offer any evidence and, at the close of all of the evidence, instructions in the nature of a demurrer were requested by each defendant separately, and were by the court refused.

Defendants' first alleged error is the failure of the trial court to order a directed verdict because, it is claimed, plaintiffs' right to recover is predicated on the negligence of defendants in operating the train at a rate of speed in excess of that provided by ordinance, and at a dangerous rate of speed, and plaintiffs' own...